March 18, 2010

Constitutional questions on SB 6

Note (March 25, 2010): This entry was written on March 15, about a substantially different version of Senate Bill 6; the obvious constitutional problems were removed by an amendment late in the week. For my thoughts about the version that passed the senate on March 24, see my entry describing it as overreaching.

While the edublogule is chattering on about ESEA's reauthorization blueprint (which Cheryl Sattler and I agree is a misnomer), there's a battle royale in the Florida capital as former state House Speaker and new state Senator John Thrasher pushes S.B. 6, which seeks to take apart existing patterns of teacher certification, pay, and job security.

After reading news coverage of the issue over the first half of March, I think the bill may have some constitutionality problems. I am not a lawyer, but it strikes me that the type of strong-arm tactics that the bill has may run afoul of several provisions of Florida's constitution:

Separation of powers: The bill delegates a task to the Florida Department of Education that may go beyond the agency's authority -- deciding whether a school district's teacher and administrative pay plan meets the statutory requirements (be performance-based with at least 50% of teacher pay based on test scores, and not use years of service or degrees in calculating pay). The consequence for failure to meet statutory obligations is the removal of 5% of the state's basic funding formula from a district a mandatory local referendum to replace that 5% with higher local property taxes. But with the exception of budgetary provisions tied to local tax rates (mentioned in the Florida constitution), I don't know where the state constitution gives an agency the effective power to direct tax rates at the local level.

"Control" of local school board vs. "supervision" by Florida Board of Education. S.B. 6 would direct certain actions of local school boards in terms of half of teacher and administrator pay and limits to job security for teachers (in an attempt to eliminate tenure). The question here is whether that goes beyond the legislature's authority in limiting constitutionally-defined powers. In 1998, voters approved a number of amendments, including the replacement of an elected state board of education (comprised of the governor and other statewide elected officials) with an appointed board of education, and the current language in the state constitution says that the state board supervises the state education system. But it also says that local school boards control education at the local level. In previous cases, the Supreme Court has decided that the legislature can carve out pay provisions that are not covered by collective bargaining (distribution of bonuses related to the state's accountability policy), but those are generally at the margins of pay issues. Would S.B. 6 go too far in encroaching on the constitutional powers of school boards to control local systems?

Right to collective bargaining. The Florida constitution grants public employees the right to collective bargaining, and in the 1970s it took a threat by the court to write the rules before the legislature finally wrote a collective-bargaining statute. Does S.B. 6 violate the collective-bargaining rights of Florida teachers? I suspect that the weakest provision of S.B. 6 in terms of the constitution is an attempt by S.B. 6 to determine half of teachers' base pay; that's far more than the marginal one-time payments that has previously been ruled to be outside collective bargaining. I don't know about the attempt to eliminate tenure. The legislature tried to do that a few decades ago, and the provisions were changed but due-process rights of experienced teachers were not eliminated.

I suspect that the strong-arm tactics of S.B. 6 (and the state senate's greasing of the bill's path to the floor) may give school boards an incentive to work with teachers' unions to figure out workarounds if it does pass, and before any legal challenges are resolved. A far less radical bill would be a smaller legal target and be less likely to stimulate backlash by school boards. Later this month or in April we'll see what the House response is to the senate's choice.

Addendum: Obviously, since I am not a lawyer, I am not professionally qualified to predict how any court might rule on that or know offhand what precedents might rule. On the other hand, I suspect it doesn't take a jurist to know that S.B. 6 is heading into unique territory, recognized by the long passages of the Senate staff's bill analysis (beginning on p. 16) devoted to two constitutional issues (one of them collective bargaining). This also says nothing about the merits of any part of S.B. 6 (and there's a lot in S.B. 6 that didn't catch my eye in terms of potential legal issues).